2007 ORS 267.237¹
Criminal records check
  • fitness determinations
  • rules regarding dissemination

(1) As used in this section:

(a) "District" means a mass transit district organized under ORS 267.010 (Definitions for ORS 267.010 to 267.390) to 267.390 (Acceptance of funds from United States) or a transportation district organized under ORS 267.510 (Definitions for ORS 267.510 to 267.650) to 267.650 (Finance elections).

(b) "Qualified entity" means an individual or business or organization, whether public, private, for-profit, nonprofit or voluntary, that, under contract with a district, provides individuals to operate motor vehicles for the transportation of passengers in the public transportation system of the district.

(c) "Subject individual" means a person subject to a criminal records check as specified by resolution of a mass transit district or a transportation district.

(2) A mass transit district or a transportation district shall request the Department of State Police to conduct criminal records checks of subject individuals if the checks are required in order to protect vulnerable Oregonians:

(a) To implement a federal or state statute, executive order or rule that expressly refers to criminal conduct and contains requirements or exclusions expressly based on such conduct;

(b) For district employment purposes when hiring individuals to operate motor vehicles of the district; or

(c) For the purposes of employment decisions made by a district for qualified entities that, under contracts with the district, employ individuals to operate motor vehicles for the transportation of passengers in the public transportation system of the district.

(3) A mass transit district that has a population of more than 500,000 may request the Department of State Police to conduct a criminal records check of a subject individual who is:

(a) Seeking employment by the district in a position that provides the individual with access to critical infrastructure or security sensitive facilities or information; or

(b) Seeking to provide services to the district that will result in the individual’s having access to critical infrastructure or security sensitive facilities or information.

(4) In order to determine the suitability of the subject individual, a district shall require the subject individual to furnish to the district a full set of fingerprints to enable a criminal records check to be conducted. The district shall submit the completed fingerprint cards to the Department of State Police along with the applicable Oregon and Federal Bureau of Investigation processing fees. If no disqualifying record is identified at the state level, the Department of State Police shall forward the fingerprints to the Federal Bureau of Investigation for a national criminal records check.

(5) The Federal Bureau of Investigation shall either return or destroy the fingerprint cards used to conduct the criminal records check and shall not keep any record of the fingerprints. However, if the federal bureau policy authorizing return or destruction of the fingerprint cards is changed, a district shall cease to cause the cards to be sent to the federal bureau but shall continue to process the information through other available resources.

(6) If the Federal Bureau of Investigation returns the fingerprint cards to the Department of State Police, the department shall destroy the fingerprint cards and shall retain no facsimiles or other material from which a fingerprint can be reproduced.

(7) If only a state criminal records check is conducted, the Department of State Police shall destroy the fingerprint cards after the criminal records check is completed and the results of the criminal records check provided to the district and shall retain no facsimiles or other material from which a fingerprint can be reproduced.

(8) The district and the Department of State Police shall permit a subject individual to inspect the individual’s own Oregon and Federal Bureau of Investigation criminal offender records after positive fingerprint identification has been made.

(9)(a) A district, using guidelines established by a resolution of the district, shall determine under this section whether a subject individual is fit to operate motor vehicles for the transportation of passengers in the public transportation system of the district or to hold a position or provide services that provide the individual with access to critical infrastructure or security sensitive facilities or information, based on the criminal records check obtained pursuant to this section, any false statements made by the individual regarding the criminal history of the individual and any refusal to submit or consent to a criminal records check including fingerprint identification. If a subject individual is determined to be unfit, then that person shall not be allowed to operate motor vehicles for the transportation of passengers in the public transportation system of the district or to hold the position or provide services that provide the individual with access to critical infrastructure or security sensitive facilities or information.

(b) In making the fitness determination, the district shall consider:

(A) The nature of the crime;

(B) The facts that support the conviction or pending indictment or indicate the making of the false statement;

(C) The relevancy, if any, of the crime or the false statement to the specific requirements of the subject individual’s present or proposed position or employment; and

(D) Intervening circumstances relevant to the responsibilities and circumstances of the position or employment. Intervening circumstances include but are not limited to the passage of time since the commission of the crime, the age of the person at the time of the crime, the likelihood of a repetition of offenses, the subsequent commission of another relevant crime and a recommendation of an employer.

(c) A district and an employee of the district are immune from any civil liability that might otherwise be incurred or imposed for actions taken in determining pursuant to this subsection that a subject individual is fit or not fit to hold a position or be employed. A district, an employee of the district and an employer or employer’s agent who in good faith comply with this section and the decision of the district or employee of the district are not liable for the failure to hire a prospective employee or the decision to discharge an employee on the basis of the district’s or employee’s decision. A district and an employee of the district are immune from any civil liability for the lawful dissemination of information obtained under this section when the disclosure is:

(A) For the purpose of providing notice to the subject individual or the employer of the subject individual of a determination of fitness under this section;

(B) Required by law; or

(C) Necessary to support a claim or defense related to denying employment to the subject individual.

(10) A district shall establish by resolution a process by which a subject individual may appeal the determination that the subject individual is disqualified for a position or employment pursuant to this section. Challenges to the accuracy or completeness of information provided by the Department of State Police, the Federal Bureau of Investigation and agencies reporting information to the department or bureau must be made through the department, bureau or agency and not through the appeal process required by this subsection.

(11) A district shall develop a system that maintains information regarding criminal records checks in order to minimize the administrative burden that criminal records check requirements impose upon subject individuals and providers. Records maintained under this subsection for subject individuals are confidential and may not be disseminated except for the purposes of this section and in accordance with the relevant resolutions of the district. Nothing in this subsection permits a district to retain fingerprint cards of subject individuals.

(12) A district, in consultation with the Department of State Police and affected provider groups, shall adopt resolutions to implement this section and other statutes relating to criminal offender information. The resolutions shall include but need not be limited to:

(a) Specifying which employees are authorized to make criminal record inquiries;

(b) Specifying categories of subject individuals who are subject to criminal records checks;

(c) Specifying the information, including fingerprints, that may be required from a subject individual to permit a criminal records check;

(d) Specifying which services or qualified entities are subject to this section;

(e) Specifying which crimes may be considered in reviewing criminal offender information for a subject individual;

(f) Specifying when a nationwide criminal records check shall be conducted on a subject individual through the Department of State Police. The additional cost of obtaining a nationwide criminal records check and the risk to vulnerable Oregonians should be taken into consideration when enacting resolutions under this subsection;

(g) Specifying when a district, in lieu of conducting a completely new criminal records check, may proceed to make a fitness determination under this section using the information maintained by the district under subsection (11) of this section; and

(h) Determining when a subject individual may be hired on a probationary basis pending a criminal records check. At a minimum, if there is any indication of criminal behavior by the subject individual, the resolution must require that, if the individual is hired, the individual can be hired only on a probationary basis and must be actively supervised at all times when the individual is in contact with children, the elderly or persons with disabilities.

(13) Criminal offender information is confidential. The Department of State Police shall adopt rules to restrict dissemination of information received under this section to persons with a demonstrated and legitimate need to know the information. Any district receiving information pursuant to this section is bound by the rules of disclosure adopted by the department.

(14) If a subject individual refuses to consent to the criminal records check or refuses to be fingerprinted, the district or qualified entity shall deny or terminate the employment of the individual, or revoke or deny any applicable position, authority to provide services or employment.

(15) A district shall define by resolution the conditions under which subject individuals may participate in training, orientation and work activities pending completion of a criminal records check through the Law Enforcement Data System or nationwide criminal records check. At a minimum, subject individuals shall be actively supervised at all times that they are in contact with children, the elderly and persons with disabilities during such periods of training, orientation and work. Subject individuals may continue probationary employment while awaiting the nationwide criminal records check as long as the individual’s criminal records check through the Law Enforcement Data System did not result in disqualification and there are no other indications of criminal behavior.

(16) If a district or a qualified entity requires a criminal records check of employees or other persons, the application forms of the district or qualified entity must contain a notice that employment is subject to fingerprinting and a criminal records check as required by this section. [1999 c.1057 §3; 2005 c.730 §65]

Note: 267.237 (Criminal records check) was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 267 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

Atty. Gen. Opinions

Authority of mass transit district's district board to refer ordinance to voters, (1979) Vol 40, p 167

1 Legislative Counsel Committee, CHAPTER 267—Mass Transit Districts; Transportation Districts, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­267.­html (2007) (last ac­cessed Feb. 12, 2009).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2007, Chapter 267, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­267ano.­htm (2007) (last ac­cessed Feb. 12, 2009).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.